|Loretto v. Teleprompter Manhattan CATV Corp.
53 N.Y.2d 124, 423 N.E.2d 320, reversed and remanded.
[ Marshall ]
[ Blackmun ]
Loretto v. Teleprompter Manhattan CATV Corp.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE WHITE join, dissenting.
If the Court's decisions construing the Takings Clause state anything clearly, it is that "[t]here is no set formula to determine where regulation ends and taking begins." Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962). [n1]
In a curiously anachronistic decision, the Court today acknowledges its historical disavowal of set formulae in almost the same breath as it constructs a rigid per se takings rule: "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." Ante at 426. To sustain its rule against our recent precedents, the Court erects a strained and untenable distinction between "temporary physical invasions," whose constitutionality concededly "is subject to a balancing process," and "permanent physical occupations," which are "taking[s] without regard to other factors that a court might ordinarily examine." Ante at 432.
In my view, the Court's approach "reduces the constitutional issue to a formalistic quibble" over whether property has been "permanently occupied" or "temporarily invaded." Sax, Takings and the Police Power, 74 Yale L.J. 36, 37 [p443] (1964). The Court's application of its formula to the facts of this case vividly illustrates that its approach is potentially dangerous, as well as misguided. Despite its concession that
States have broad power to regulate . . . the landlord-tenant relationship . . . without paying compensation for all economic injuries that such regulation entails,
ante at 440, the Court uses its rule to undercut a carefully considered legislative judgment concerning landlord-tenant relationships. I therefore respectfully dissent.
Before examining the Court's new takings rule, it is worth reviewing what was "taken" in this case. At issue are about 36 feet of cable one-half inch in diameter and two 4" x 4" x 4" metal boxes. Jointly, the cable and boxes occupy only about one-eighth of a cubic foot of space on the roof of appellant's Manhattan apartment building. When appellant purchased that building in 1971, the "physical invasion" she now challenges had already occurred. [n2] Appellant did not bring this action until about five years later, demanding 5% of appellee Teleprompter's gross revenues from her building, and claiming that the operation of N.Y.Exec.Law § 828 (McKinney [p444] Supp.1981-1982) "took" her property. The New York Supreme Court, the Appellate Division, and the New York Court of Appeals all rejected that claim, upholding § 828 as a valid exercise of the State's police power.
The Court of Appeals held that
the State may proscribe a trespass action by landlords generally against a cable TV company which places a cable and other fixtures on the roof of any landlord's building, in order to protect the right of the tenants of rental property, who will ultimately have to pay any charge a landlord is permitted to collect from the cable TV company, to obtain TV service in their respective apartments.
53 N.Y.2d 124, 153, 423 N.E.2d 320, 335 (1981).
In so ruling, the court applied the multifactor balancing test prescribed by this Court's recent Takings Clause decisions. Those decisions teach that takings questions should be resolved through "essentially ad hoc, factual inquiries," Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979), into
such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations.
PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980). See 53 N.Y.2d at 144-151, 423 N.E.2d at 330-334.
The Court of Appeals found, first, that § 828 represented a reasoned legislative effort to arbitrate between the interests of tenants and landlords and to encourage development of an important educational and communications medium. [n3] Id. at [p445] 143-145, 423 N.E.2d at 329-330. Moreover, under PruneYard Shopping Center v. Robins, 447 U.S. at 83-84, the fact that § 828 authorized Teleprompter to make a minor physical intrusion upon appellant's property was in no way determinative of the takings question. 53 N.Y.2d at 146-147, 423 N.E.2d at 331. [n4]
Second, the court concluded that the statute's economic impact on appellant was de minimis, because § 828 did not affect the fair return on her property. 53 N.Y.2d at 148-150, 423 N.E.2d at 332-333. Third, the statute did not interfere with appellant's reasonable investment-backed expectations. Id. at 150-151, 423 N.E.2d at 333-334. When appellant purchased the building, she was unaware of the existence of the cable. See n. 2, supra. Thus, she could not have invested in the building with any reasonable expectation that the one-eighth cubic foot of space occupied by the cable television installment would become income-productive. 53 N.Y.2d at 155, 423 N.E.2d at 336. [p446]
Given that the New York Court of Appeals' straightforward application of this Court's balancing test yielded a finding of no taking, it becomes clear why the Court now constructs a per se rule to reverse. The Court can escape the result dictated by our recent takings cases only by resorting to bygone precedents and arguing that "permanent physical occupations" somehow differ qualitatively from all other forms of government regulation.
The Court argues that a per se rule based on "permanent physical occupation" is both historically rooted, see ante at 426-435, and jurisprudentially sound, see ante at 435-438. I disagree in both respects. The 19th-century precedents relied on by the Court lack any vitality outside the agrarian context in which they were decided. [n5] But if, by chance, they [p447] have any lingering vitality, then, in my view, those cases stand for a constitutional rule that is uniquely unsuited to the modern urban age. Furthermore, I find logically untenable the Court's assertion that § 828 must be analyzed under a per se rule because it "effectively destroys" three of "the most treasured strands in an owner's bundle of property rights," ante at 435.
The Court's recent Takings Clause decisions teach that nonphysical government intrusions on private property, such as zoning ordinances and other land use restrictions, have become the rule, rather than the exception. Modern government regulation exudes intangible "externalities" that may diminish the value of private property far more than minor physical touchings. Nevertheless, as the Court recognizes, it has "often upheld substantial regulation of an owner's use of his own property where deemed necessary to promote the public interest." Ante at 426. See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124-125 (1978); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
Precisely because the extent to which the government may injure private interests now depends so little on whether or not it has authorized a "physical contact," the Court has avoided per se takings rules resting on outmoded distinctions between physical and nonphysical intrusions. As one commentator has observed, a takings rule based on such a distinction is inherently suspect, because "its capacity to distinguish, even crudely, between significant and insignificant losses is too puny to be taken seriously." Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1227 (1967).
Surprisingly, the Court draws an even finer distinction today -- between "temporary physical invasions" and "permanent [p448] physical occupations." When the government authorizes the latter type of intrusion, the Court would find "a taking without regard to the public interests" the regulation may serve. Ante at 426. Yet an examination of each of the three words in the Court's "permanent physical occupation" formula illustrates that the newly created distinction is even less substantial than the distinction between physical and nonphysical intrusions that the Court already has rejected.
First, what does the Court mean by "permanent"? Since all "temporary limitations on the right to exclude" remain "subject to a more complex balancing process to determine whether they are a taking," ante at 435, n. 12, the Court presumably describes a government intrusion that lasts forever. But as the Court itself concedes, § 828 does not require appellant to permit the cable installation forever, but only "[s]o long as the property remains residential and a CATV company wishes to retain the installation." Ante at 439. This is far from "permanent."
The Court reaffirms that
States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.
Ante at 440. Thus, § 828 merely defines one of the many statutory responsibilities that a New Yorker accepts when she enters the rental business. If appellant occupies her own building, or converts it into a commercial property, she becomes perfectly free to exclude Teleprompter from her one-eighth cubic foot of roof space. But once appellant chooses to use her property for rental purposes, she must comply with all reasonable government statutes regulating the landlord-tenant relationship. [n6] If § 828 authorizes a "permanent" occupation, [p449] and thus works a taking "without regard to the public interests that it may serve," then all other New York statutes that require a landlord to make physical attachments to his rental property also must constitute takings, even if they serve indisputably valid public interests in tenant protection and safety. [n7]
The Court denies that its theory invalidates these statutes, because they "do not require the landlord to suffer the physical occupation of a portion of his building by a third party." Ante at 440. But surely this factor cannot be determinative, since the Court simultaneously recognizes that temporary [p450] invasions by third parties are not subject to a per se rule. Nor can the qualitative difference arise from the incidental fact that, under § 828, Teleprompter, rather than appellant or her tenants, owns the cable installation. Cf. ante at 440, and n.19. If anything, § 828 leaves appellant better off than do other housing statutes, since it ensures that her property will not be damaged aesthetically or physically, see n. 4, supra, without burdening her with the cost of buying or maintaining the cable.
In any event, under the Court's test, the "third party" problem would remain even if appellant herself owned the cable. So long as Teleprompter continuously passed its electronic signal through the cable, a litigant could argue that the second element of the Court's formula -- a "physical touching" by a stranger -- was satisfied, and that § 828 therefore worked a taking. [n8] Literally read, the Court's test opens the door to endless metaphysical struggles over whether or not an individual's property has been "physically" touched. It was precisely to avoid "permit[ting] technicalities of form to dictate consequences of substance," United States v. Central Eureka Mining Co., 357 U.S. 155, 181 (1958) (Harlan, J., dissenting), that the Court abandoned a "physical contacts" test in the first place.
Third, the Court's talismanic distinction between a continuous "occupation" and a transient "invasion" finds no basis in either economic logic or Takings Clause precedent. In the landlord-tenant context, the Court has upheld against takings challenges rent control statutes permitting "temporary" [p451] physical invasions of considerable economic magnitude. See, e.g., Block v. Hirsh, 256 U.S. 135 (1921) (statute permitting tenants to remain in physical possession of their apartments for two years after the termination of their leases). Moreover, precedents record numerous other "temporary" officially authorized invasions by third parties that have intruded into an owner's enjoyment of property far more deeply than did Teleprompter's long-unnoticed cable. See, e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (leafletting and demonstrating in busy shopping center); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (public easement of passage to private pond); United States v. Causby, 328 U.S. 256 (1946) (noisy airplane flights over private land). While, under the Court's balancing test, some of these "temporary invasions" have been found to be takings, the Court has subjected none of them to the inflexible per se rule now adapted to analyze the far less obtrusive "occupation" at issue in the present case. Cf. ante at 430-431, 432-435.
In sum, history teaches that takings claims are properly evaluated under a multifactor balancing test. By directing that all "permanent physical occupations" automatically are compensable, "without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner," ante at 434-435, the Court does not further equity so much as it encourages litigants to manipulate their factual allegations to gain the benefit of its per se rule. Cf. n. 8, supra. I do not relish the prospect of distinguishing the inevitable flow of certiorari petitions attempting to shoehorn insubstantial takings claims into today's "set formula."
Setting aside history, the Court also states that the permanent physical occupation authorized by § 828 is a per se taking because it uniquely impairs appellant's powers to dispose of, use, and exclude others from, her property. See ante at [p452] 435-438. In fact, the Court's discussion nowhere demonstrates how § 828 impairs these private rights in a manner qualitatively different from other garden-variety landlord-tenant legislation.
The Court first contends that the statute impairs appellant's legal right to dispose of cable-occupied space by transfer and sale. But that claim dissolves after a moment's reflection. If someone buys appellant's apartment building, but does not use it for rental purposes, that person can have the cable removed, and use the space as he wishes. In such a case, appellant's right to dispose of the space is worth just as much as if § 828 did not exist.
Even if another landlord buys appellant's building for rental purposes, § 828 does not render the cable-occupied space valueless. As a practical matter, the regulation ensures that tenants living in the building will have access to cable television for as long as that building is used for rental purposes, and thereby likely increases both the building's resale value and its attractiveness on the rental market. [n9]
In any event, § 828 differs little from the numerous other New York statutory provisions that require landlords to install physical facilities "permanently occupying" common spaces in or on their buildings. As the Court acknowledges, the States traditionally -- and constitutionally -- have exercised their police power
to require landlords to . . . provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building.
Ante at 440. Like § 828, these provisions merely ensure tenants access to services the legislature deems important, such as water, electricity, natural light, telephones, intercommunication systems, and mail service. See n. 7, supra. A landlord's dispositional rights are affected no more adversely [p453] when he sells a building to another landlord subject to § 828, than when he sells that building subject only to these other New York statutory provisions.
The Court also suggests that § 828 unconstitutionally alters appellant's right to control the use of her one-eighth cubic foot of roof space. But other New York multiple dwelling statutes not only oblige landlords to surrender significantly larger portions of common space for their tenants' use, but also compel the landlord -- rather than the tenants or the private installers -- to pay for and to maintain the equipment. For example, New York landlords are required by law to provide and pay for mailboxes that occupy more than five times the volume that Teleprompter's cable occupies on appellant's building. See Tr. of Oral Arg. 443, citing N.Y.Mult.Dwell.Law § 57 (McKinney 1974). If the State constitutionally can insist that appellant make this sacrifice so that her tenants may receive mail, it is hard to understand why the State may not require her to surrender less space, filled at another's expense, so that those same tenants can receive television signals.
For constitutional purposes, the relevant question cannot be solely whether the State has interfered in some minimal way with an owner's use of space on her building. Any intelligible takings inquiry must also ask whether the extent of the State's interference is so severe as to constitute a compensable taking in light of the owner's alternative uses for the property. [n10] Appellant freely admitted that she would have [p454] had no other use for the cable-occupied space were Teleprompter's equipment not on her building. See App. 97 (Deposition of Jean A. Loretto).
The Court's third and final argument is that § 828 has deprived appellant of her "power to exclude the occupier from possession and use of the space" occupied by the cable. Ante at 435. This argument has two flaws. First, it unjustifiably assumes that appellant's tenants have no countervailing property interest in permitting Teleprompter to use that space. [n11] Second, it suggests that the New York Legislature may not exercise its police power to affect appellant's common law right to exclude Teleprompter even from one-eighth cubic foot of roof space. But this Court long ago recognized that new social circumstances can justify legislative modification of a property owner's common law rights, without compensation, if the legislative action serves sufficiently important public interests. See Munn v. Illinois, 94 U.S. 113, 134 (1877) ("A person has no property, no vested interest, in any rule of the common law. . . . Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstance"); United States v. Causby, 328 U.S. at 260-261 (In the modern world, "[c]ommon sense revolts at the idea" that legislatures cannot alter common law ownership rights). [p455]
As the Court of Appeals recognized, § 828 merely deprives appellant of a common law trespass action against Teleprompter, but only for as long as she uses her building for rental purposes, and as long as Teleprompter maintains its equipment in compliance with the statute. JUSTICE MARSHALL recently and most aptly observed:
[Appellant's] claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State. . . . If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U.S. 45 (1905), when common law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.
PruneYard Shopping Center v. Robins, 447 U.S. at 93 (concurring opinion).
In the end, what troubles me most about today's decision is that it represents an archaic judicial response to a modern social problem. Cable television is a new and growing, but somewhat controversial, communications medium. See Brief for New York State Cable Television Association as Amicus Curiae 7 (about 25% of American homes with televisions -- approximately 20 million families currently subscribe to cable television, with the penetration rate expected to double by 1990). The New York Legislature not only recognized, but also responded to, this technological advance by enacting a statute that sought carefully to balance the interests of all private parties. See nn. 3 and 4, supra. New York's courts in this litigation, with only one jurist in dissent, unanimously upheld the constitutionality of that considered legislative judgment. [p456]
This Court now reaches back in time for a per se rule that disrupts that legislative determination. [n12] Like Justice Black, I believe that
the solution of the problems precipitated by . . . technological advances and new ways of living cannot come about through the application of rigid constitutional restraints formulated and enforced by the courts.
United States v. Causby, 328 U.S. at 274 (dissenting opinion). I would affirm the judgment and uphold the reasoning of the New York Court of Appeals.
1. See Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Andrus v. Allard, 444 U.S. 51, 65 (1979) ("There is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appropriate"); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978); United States v. Caltex, Inc., 344 U.S. 149, 156 (1952) ("No rigid rules can be laid down to distinguish compensable losses from noncompensable losses"); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (a takings question "is a question of degree -- and therefore cannot be disposed of by general propositions").
2. In January, 1968, appellee Teleprompter signed a 5-year installation agreement with the building's previous owner in exchange for a flat fee of $50. Appellee installed both the 30-foot main cable and its 4- to 6-foot "crossover" extension in June, 1970. For two years after taking possession of the building and the appurtenant equipment, appellant did not object to the cable's presence. Indeed, despite numerous inspections, appellant had never even noticed the equipment until Teleprompter first began to provide cable television service to one of her tenants. 53 N.Y.2d 124, 134-135, 423 N.E.2d 320, 324 (1981). Nor did appellant thereafter ever specifically ask Teleprompter to remove the components from her building. App. 107, 108, 110.
Although the Court alludes to the presence of "two large silver boxes" on appellant's roof, ante at 438, n. 16, the New York Court of Appeals' opinion nowhere mentions them, nor are their dimensions stated anywhere in the record.
3. The court found that the state legislature had enacted § 828 to "prohibit gouging and arbitrary action" by "landlords [who] in many instances have imposed extremely onerous fees and conditions on cable access to their buildings." 53 N.Y.2d at 141, 423 N.E.2d at 328, citing testimony of Joseph C. Swidler, Chairman of the Public Service Commission, before the Joint Legislative Committee considering the CATV bill.
Given the growing importance of cable television, the legislature decided that urban tenants' need for access to that medium justified a minor intrusion upon the landlord's interest, which
consists entirely of insisting that some negligible unoccupied space remain unoccupied. The tenant's interest clearly is more substantial, consisting of a right to receive (and perhaps send) communications from and to the outside world. In the electronic age, the landlord should not be able to preclude a tenant from obtaining CATV service (or to exact a surcharge for allowing the service) any more than he could preclude a tenant from receiving mail or telegrams directed to him.
Id., citing Regulation of Cable Television by the State of New York, Report to the New York Public Service Commission by Commissioner William K. Jones 207 (1970).
4. Section 828 carefully regulates the cable television company's physical intrusion onto the landlord's property. If the landlord requests, the company must conform its installations
to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and wellbeing of other tenants.
N.Y.Exec.Law § 828(1)(a)(i) (McKinney Supp.1981-1982). Furthermore, the company must "agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities." § 828(1)(a)(iii). Finally, the statute authorizes the landlord to require either "the cable television company or the tenant or a combination thereof [to] bear the entire cost of the installation, operation or removal" of any equipment. § 828(1)(a)(ii).
5. The Court properly acknowledges that none of our recent takings decisions have adopted a per se test for either temporary physical invasions or permanent physical occupations. See ante at 432-435, and 435435, n. 12. While the Court relies on historical dicta to support its per se rule, the only holdings it cites fall into two categories: a number of cases involving flooding, ante at 427-428, and St. Louis v. Western Union Telegraph Co., 148 U.S. 92 (1893), cited ante at 428.
In 1950, the Court noted that the first line of cases stands for "the principle that the destruction of privately owned land by flooding is ‘a taking' to the extent of the destruction caused," and that those rulings had already "been limited by later decisions in some respects." United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809-810. Even at the time of its decision, St. Louis v. Western Union Telegraph Co. addressed only the question "[w]hether the city has power to collect rental for the use of streets and public places" when a private company seeks exclusive use of land whose
use is common to all members of the public, and . . . [is] open equally to citizens of other States with those of the State in which the street is situate.
148 U.S. at 98-99. On its face, that issue is distinct from the question here: whether appellant may extract from Teleprompter a fee for the continuing use of her roof space above and beyond the fee set by statute, namely, "any amount which the commission shall, by regulation, determine to be reasonable." N.Y.Exec.Law § 828(1)(b) (McKinney Supp.1982).
6. In my view, the fact that § 828 incidentally protects so-called "crossover" wires that do not currently serve tenants, see ante at 422, n. 2, does not affect § 828's fundamental character as a piece of landlord-tenant legislation. As the Court recognizes, ante at 422, crossovers are crucial links in the cable "highway," and represent the simplest and most economical way to provide service to tenants in a group of buildings in close proximity. Like the Court, I find "no constitutional difference between a crossover and a noncrossover installation," ante at 438. Even assuming arguendo that the crossover extension in this case works a taking, I would be prepared to hold that the incremental governmental intrusion caused by that 4- to 6-foot wire, which occupies the cubic volume of a child's building block, is a de minimis deprivation entitled to no compensation.
7. See, e.g., N.Y.Mult.Dwell.Law § 35 (McKinney 1974) (requiring entrance doors and lights); § 36 (windows and skylights for public halls and stairs); § 50-a (Supp.1982) (locks and intercommunication systems); § 50-c (lobby attendants); § 51-a (peepholes); § 51-b (elevator mirrors); § 53 (fire escapes); § 57 (bells and mail receptacles); § 67(3) (fire sprinklers). See also Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946) (upholding constitutionality of New York fire sprinkler provision).
These statutes specify in far greater detail than § 828 what types of physical facilities a New York landlord must provide his tenants and where he must provide them. See, e.g., N.Y.Mult.Dwell.Law § 75 (McKinney 1974) (owners of multiple dwellings must provide "proper appliances to receive and distribute an adequate supply of water," including "a proper sink with running water and with a two-inch waste and trap"); § 35 (owners of multiple dwellings with frontage exceeding 22 feet must provide "at least two lights, one at each side of the entrance way, with an aggregate illumination of one hundred fifty watts or equivalent illumination"); § 50-a(2) (Supp.1981-1982) (owners of Class A multiple dwellings must provide intercommunication system "located at an automatic self-locking door giving public access to the main entrance hall or lobby").
Apartment building rooftops are not exempted. See § 62 (landlords must place parapet walls and guardrails on their roofs "three feet six inches or more in height above the level of such area").
8. Indeed, appellant's counsel made precisely this claim at oral argument. Urging the rule which the Court now adopts, appellant's counsel suggested that a taking would result even if appellant owned the cable.
[T]he precise location of the easement [taken by Teleprompter changes] from the surface of the roof to inside the wire. . . . [T]he wire itself is owned by the landlord, but the cable company has the right to pass its signal through the wire without compensation to the landlord, for its commercial benefit.
Tr. of Oral Arg. 15.
9. In her pretrial deposition, appellant conceded not only that owners of other apartment buildings thought that the cable's presence had enhanced the market value of their buildings, App. 102-103, but also that her own tenants would have been upset if the cable connection had been removed. Id. at 107, 108, 110.
10. For this reason, the Court provides no support for its per se rule by asserting that the State could not require landlords, without compensation, "to permit third parties to install swimming pools," ante at 436, or vending and washing machines, ante at 439, n. 17, for the convenience of tenants. Presumably, these more intrusive government regulations would create difficult takings problems even under our traditional balancing approach. Depending on the character of the governmental action, its economic impact, and the degree to which it interfered with an owner's reasonable investment-backed expectations, among other things, the Court's hypothetical examples might or might not constitute takings. These examples hardly prove, however, that a permanent physical occupation that works a de minimis interference with a private property interest is a taking per se.
11. It is far from clear that, under New York law, appellant's tenants would lack all property interests in the few square inches on the exterior of the building to which Teleprompter's cable and hardware attach. Under modern landlord-tenant law, a residential tenancy is not merely a possessory interest in specified space, but also a contract for the provision of a package of services and facilities necessary and appurtenant to that space. See R. Schoshinski, American Law of Landlord and Tenant § 3:14 (1980). A modern urban tenant's leasehold often includes not only contractual, but also statutory, rights, including the rights to an implied warranty of habitability, rent control, and such services as the landlord is obliged by statute to provide. Cf. n. 7, supra.
12. Happily, the Court leaves open the question whether § 828 provides landlords like appellant sufficient compensation for their actual losses. See ante at 441. Since the State Cable Television Commission's regulations permit higher than nominal awards if a landlord makes "a special showing of greater damages," App. 52, the concurring opinion in the New York Court of Appeals found that the statute awards just compensation. See 53 N.Y.2d at 155, 423 N.E.2d at 336 ("[I]t is obvious that a landlord who actually incurs damage to his property or is restricted in the use to which he might put that property will receive compensation commensurate with the greater injury"). If, after the remand following today's decision, this minor physical invasion is declared to be a taking deserving little or no compensation, the net result will have been a large expenditure of judicial resources on a constitutional claim of little moment.